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2022 DIGILAW 863 (JHR)

Sabita Dey @ Sabita Ghosh v. Anil Singh

2022-07-15

RAJESH SHANKAR

body2022
JUDGMENT : The present C.M.P has been filed for quashing the judgment dated 17.02.2020 (Annexure-6 to the C.M.P) passed by the Principal District Judge, East Singhbhum at Jamshedpur in Civil Misc. Appeal No. 01 of 2020 whereby the appeal preferred by the petitioner has been dismissed and the order dated 22.11.2019 passed by the Civil Judge (Sr. Div.)-I, East Singhbhum at Jamshedpur in Civil Misc. Case No. 17/2019 rejecting the application filed under Order IX Rule 13 of C.P.C for setting aside an ex-parte judgment and decree dated 12.04.1999 passed by the Sub-Judge-I, Jamshedpur in Title Suit No. 35 of 1996, has been affirmed. Further prayer has been made for quashing the order dated 22.11.2019 (Annexure-4 to the C.M.P) passed by the Civil Judge (Sr. Div.)-I, East Singhbhum at Jamshedpur in Civil Misc. Case No. 17 of 2019 whereby the application filed by the petitioner under Order IX Rule 13 of the C.P.C for setting aside an ex-parte judgment and decree dated 12.04.1999 in the said title suit has been dismissed. 2. The factual background of the case, as stated in the C.M.P, is that the petitioner”s father, namely, Jogendra Mohan Ghosh was the sub-lessee/owner of a piece of land admeasuring 0.295 Acre, situated at Holding No. 158, Sakchi New Planning Area, Dhalbhum Road, Aam Bagan, Sakchi, P.O & P.S-Sakchi, Town-Jamshedpur, District-East Singhbhum (hereinafter referred to as ‘the said property’). The petitioner’s father died on 14.02.1965 leaving behind two sons, namely, Nimai Ghosh and Late Nitai Pada Ghosh as well as four daughters, namely, Late Amita Ghosh @ Amita Chowdhury, Namita Ghosh, Sabita Ghosh @ Sabita Dey (the petitioner) and Late Gita Dutta @ Gita Ghosh as his legal heirs and successors. After death of Jogendra Mohan Ghosh, the said property devolved upon the petitioner and other legal heirs. The petitioner being one of the daughters of Late Jogendra Mohan Ghosh and the co-owner, is in peaceful possession of a portion of the said property by constructing triple storied Pucca building over the same and has inducted various tenants from time to time in the same. 3. The respondent No.1 had filed Title Suit No. 35/1996 against the petitioner and other defendants seeking inter alia a decree directing the principal defendant i.e. defendant No.1 (Nimai Ghosh) to execute and register a sale deed in his favour in respect of the suit land i.e. 60”x30” = 1800 sq. ft. 3. The respondent No.1 had filed Title Suit No. 35/1996 against the petitioner and other defendants seeking inter alia a decree directing the principal defendant i.e. defendant No.1 (Nimai Ghosh) to execute and register a sale deed in his favour in respect of the suit land i.e. 60”x30” = 1800 sq. ft. on accepting the balance amount of Rs.50,000/- against total sale consideration of Rs.6,00,000/-. The said suit was decreed ex-parte against the petitioner vide judgment dated 12.04.1999 and decree dated 01.05.1999 passed by the Sub-Judge-I, Jamshedpur. The petitioner came to know about filling of Title Suit No. 35/1996 and Execution Case No. 15 of 1999 on 28.04.2019 only when Nazir along with the staff of Nazarat Civil Court came to the said land and started evicting the tenants of the petitioner, who were in occupation of a portion of the ground floor and locked the same. Having come to know the said fact, the petitioner filed an application under Order IX Rule 13 read with Section 151 of the CPC on 21.05.2019 before the Court of the Civil Judge (Sr. Div.)-I, Jamshedpur which was registered as Civil Misc. Case No. 17 of 2019, however, the same was dismissed vide order dated 22.11.2019. Aggrieved with the said order, the petitioner preferred an appeal being Civil Misc. Appeal No. 1 of 2020 before the Court of the learned Principal District Judge, East Singhbhum at Jamshedpur, which was also dismissed on 17.02.2020. Hence, the present C.M.P. 4. Learned counsel for the petitioner submits that the notice in Title Suit No. 35 of 1996 was issued to the petitioner at a wrong address as after her marriage solemnized on 02.03.1989, she was residing in her in-laws house at a different place and the respondent No.1 had full knowledge of the same. The petitioner was never served any summon or notice in Title Suit No. 35 of 1996 either through the process of the Court or through the Postal Department. She had no knowledge about pendency of the said suit or about Execution Case No. 15 of 1999. The petitioner has not been given sufficient opportunity to lead evidence as no notice was served upon her before initiating an ex-parte proceeding against her. The Courts below have failed to appreciate the fact that the defendant has right to present his/her case as to whether he/she has been arrayed as a proforma-defendant in the suit. The petitioner has not been given sufficient opportunity to lead evidence as no notice was served upon her before initiating an ex-parte proceeding against her. The Courts below have failed to appreciate the fact that the defendant has right to present his/her case as to whether he/she has been arrayed as a proforma-defendant in the suit. If the impugned orders are not quashed, the same will cause irreparable loss and injury to the petitioner. The Appellate Court has erroneously observed that the petitioner did not have the locus standi to file an application under Order IX Rule 13 of the C.P.C as the execution of the decree passed in Title Suit No. 35 of 1996 directly affects the right of the petitioner since the property against which the execution is being carried out, belongs to the petitioner. 5. Heard learned counsel for the petitioner and perused the relevant materials available on record. The petitioner has prayed for setting aside an ex-parte decree passed in Title Suit No. 35 of 1996. On perusal of the 2nd supplementary affidavit filed on behalf of the petitioner, it appears that F. A. No. 51 of 1999(R) was filed by the respondent No.2 before this Court against the judgment and decree passed in Title Suit No. 35 of 1996 wherein the petitioner was also made party respondent, however, the same was dismissed for default. Thereafter, C.M.P No. 298 of 2018 was filed for restoration of the appeal wherein notice dated 15.09.2018 was issued to the petitioner which was already served to her and finally the C.M.P was allowed restoring the first appeal to its original file. Subsequently, vide order dated 26.06.2019, the said first appeal was transferred to the Court of the learned Principal District Judge, East Singhbhum, Jamshedpur as per the pecuniary jurisdiction which was registered as Civil Appeal No. 110/2020. The said appeal was dismissed on 04.05.2022 affirming the judgment and decree passed by the Trial Court in Title Suit No. 35/1996. Thereafter, Second Appeal No. 44/2022 filed by Nimai Ghosh (the respdnent No.2) in this Court also got dismissed vide order dated 30.06.2022. 6. Admittedly, the petitioner got the knowledge about pendency of the first appeal after receiving the notice dated 15.09.2018, however, she did not take any step in the said C.M.P or in the first appeal. Thereafter, Second Appeal No. 44/2022 filed by Nimai Ghosh (the respdnent No.2) in this Court also got dismissed vide order dated 30.06.2022. 6. Admittedly, the petitioner got the knowledge about pendency of the first appeal after receiving the notice dated 15.09.2018, however, she did not take any step in the said C.M.P or in the first appeal. Subsequently, after transfer of the said appeal to the Court of the learned Principal District Judge, Jamshedpur, the same was dismissed. If the petitioner had taken appropriate step immediately after receipt of notice in C.M.P, she would have got sufficient opportunity to place her case before the Appellate Court, however, she failed to do so due to her own wrong/negligence. 7. I have perused Order IX Rule 13 of the CPC which provides that an ex-parte decree can be set aside, if the Court is satisfied that summons was not duly served to the defendant or he/she was prevented by any sufficient cause from appearing when the suit was called on for hearing. Second proviso to Rule 13 expressly provides that mere irregularity in the service of summons cannot be a ground for setting aside the decree, if the Court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim. 8. In the present case, other defendants of Title Suit No. 35 of 1996 were the brothers and sisters of the petitioner and thus they were her close relatives, who had contested the suit and finally the suit was decreed in favour of the plaintiff/respondent No.1 vide judgment dated 12.04.1999 and decree dated 01.05.1999. It cannot be believed that the petitioner had no knowledge about filing of the suit for about 20 years that too, when she is claiming that her tenants are residing in the suit property. Even after receiving the notice in C.M.P No. 298 of 2018, the petitioner did not avail the opportunity of contesting the appeal and as such the ground raised by the petitioner for setting aside the decree has rightly not been accepted by the Courts below. There is a well-known maxim “Vigilantibus Non Dormientibus Jura Subveniunt” which means the law assists only those who are vigilant and not those who sleep over their rights. 9. There is a well-known maxim “Vigilantibus Non Dormientibus Jura Subveniunt” which means the law assists only those who are vigilant and not those who sleep over their rights. 9. In view of the aforesaid factual and legal position, I find no infirmity in the impugned judgment dated 17.02.2020 passed by the learned Principal District Judge, East Singhbhum at Jamshedpur in Civil Misc. Appeal No. 01 of 2020 affirming the order dated 22.11.2019 passed by the Civil Judge (Sr. Div.)-I, East Singhbhum at Jamshedpur in Civil Misc. Case No. 17 of 2019. 10. The present C.M.P is accordingly dismissed. 11. Consequently, I.A. No. 3338/2022 also stands dismissed.